Deamicis' -- CA Supreme Crt Petition for Writ of Certioriari FILED 9-22-11-1

8/4/2019 Deamicis' -- CA Supreme Crt Petition for Writ of Certioriari FILED 9-22-11-1

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Case No. M-1502-CL-18351

IN

THE

SUPREME COURTO

F THE

STATE OF CALIFORNIAEN BANC

______________________________________________

Ruth M. Deamicis

PETITIONER

vs.

Superior Court of the State of California for the County of Kern,Metropolitan Division, Appellate Division; and Superior Court of the State

of California for the County of Kern, Mojave Branch, the

Honorable Kenneth Pritchard, Commissioner,

RESPONDENTS

______________________________________________

PETITION FOR WRIT OF CERTIORARI;

MEMORANDUM OF POINTS AND AUTHORITIES

______________________________________________

Ruth M. Deamicis

20416 Sierra Ave

Tehachapi CA 93561

661-823-4125

Self Represented


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PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED

Did the Judicial Council of California/Administrative Office of the Courtsinclude within the Judges Benchguide 31 the specifically acknowledged

defense Title is at Issue to insure redress of due process issues inherent to

foreclosed homeowners such as statutorily implied prohibition from

demanding production of the Note and Deed of Trust and/or statutory

abrogation of default procedure by private agreement?

In constructing the non-judicial foreclosure statute(s) Cal. Civil Code 2924,

was the intention of the California Legislature to abrogate California

Commercial Code provision and private agreement right to demand

production of the Note and Deed of Trust from the party demanding

payment?

In constructing the non-judicial foreclosure statute(s) Cal. Civil Code 2924,

was the intention of the California Legislature to abrogate provisional

access to power of sale by private agreement, which abrogation is

prohibited under Article 1 Section 10 of the U.S. Constitution, in favor of

statutory access to power of sale to empower statutory non-judicial

foreclosure whereby is created a statutory waiver of due process prohibited

under the Fourteenth Amendment?

i


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RULE 8.552 STATEMENT

In the spirit of Rule 8.552.

THIS IS A CRISIS! In California between 9,000 and 18,000 Foreclosed

homes are confiscated EACH MONTH by the banking industry

(Information available at http://www.foreclosureradar.com/california-

foreclosures). The broadcast news media, newspaper and numerous

periodicals have raised public awareness that over ninety-nine percent of

these confiscated homes have been and will continue to be acquired by

fraudulent means. The small percentage of homeowners who rely upon the

California trial courts for protection under express laws are in most cases

met with abuse of discretion. This crisis of massive California homeowner

exile has been by the hand of the trial courts who are presumed to be under

oath to stand as guardians of law, equity and substantial justice to prevent

the very travesty of justice they continue to support. The Judicial Council

of California/Administrative Office of the Courts drew the line to insure the

rights of those who stood on there right to equal protection under the laws

would have issues of title, fraud and due process heard by an impartial

judiciary. Presently, in any proceeding dealing with foreclosure issues, the

trial court merely presides over a bank tribunal. This crisis requires the

immediate intervention of this honorable Court as week by week thousands

of homeowners are continually being evicted contrary to the

Constitutionally protected right to equal protection under the laws.

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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Petitioner hereby certifies that she is not aware of any person or

entity that must be listed under the provisions of California Rule of Court

8.208(e).

iii


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TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI (Index Tab 1)..........................1

PRELIMINARY AND JURISDICTIONAL STATEMENT.............1THE PARTIES...................................................................................5

FACTS AND LAW............................................................................6

REAL PROPERTY IN CERTAIN CASES............................6

CALIFORNIA JUDGES BENCHGUIDES............................7

ESTABLISHING JURISDICTION........................................8

CLAIMS ASSERTED........................................................................9

RELIEF SOUGHT...........................................................................10

VERIFICATION (Index Tab 2)......................................................11

MEMORANDUM OF POINTS AND AUTHORITIES (Index Tab 3).....12

Scope of Unlawful Detainer and Civil Limited Jurisdiction............12

Construction of Applicable Law.......................................................12

CONCLUSION............................................................................................15

CERTIFICATE OF COMPLIANCE (Index Tab 4)...................................17

ATTACHMENTS

A - Trial Court Minute Order........................................................................2

B - Trial Court Application For Stay Of Enforcement Of Judgment

and denial of Application........................................................................2

C - Appellate Division Request For Emergency Stay Of Execution

and denial of Request................................................................................2

D - Petition For Writ Of Supersedes to stay eviction pending appeal

and denial of Writ....................................................................................2

E - Petitioners Appellate Division appeal briefs..........................................2

iv


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EE - Petitioners Appellate Division oral argument transcript

and Appellant Division decision...........................................................2

ATTACHMENTS (cont.)F - Petitioners accepted certification of transferability to the State Court of

Appeal.................................................................................................2

G - State Court of Appeal denial of Petitioners case and

Appellate Division Remittitur...................................................................3

v


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TABLE OF AUTHORITIES

Page(s)

Cases

Abelleira v. District Court of Appeal,17 Cal.2d 280, 288 [109 P.2d 942, 132 A.L.R. 715]...................13,14

Asuncion v Superior Court,

(1980) 108 CA3d 141-146, 166 CR 306.........................................7,9

Auto Equity Sales, Inc. v. Superior Court

57 Cal. 2d 450 - Cal: Supreme Court 1962......................................13

Drouet v Superior Court

(2003) 31 C4th 583, 587, 3 CR3d 205..............................................7

Glendale Fed. Bank v Hadden,

(1999) 73 CA4th 1150, 1153, 87 CR2d 102......................................7

Globe Indemnity Co. v. Larkin,

62 Cal.App.2d 891, 894 [145 P.2d 633]...........................................15

Joyce v. U.S.

474 2D 215......................................................................................3,8

Latham v. Santa Clara County Hospital,104 Cal.App.2d 336, 340 [231 P.2d 513].........................................14

Manning v Franklin,

(1889) 81 C 205, 207, 22 P 550.........................................................8

Mehr v Superior Court,

(1983) 139 CA3d 1044, 1049, 189 CR 138........................................7

Melo v. U.S.

505 F 2d 1026....................................................................................8

Nork v Pacific Coast Med. Enters., Inc.,

(1977) 73 CA3d 410, 414, 140 CR 734..............................................7

vi


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Cases (cont.)

Old Wayne Mut. L. Assoc. v. Mcdonough

204 U. S. 8, 27 S. Ct. 236 (1907).......................................................8

People v. McGuire,

45 Cal. 56, 57-58..............................................................................14

Portnoy v. Superior Court,

20 Cal.2d 375 [125 P.2d 487]...........................................................13

Simmons v. Superior Court,

52 Cal.2d 373 [341 P.2d 13].............................................................13

Stuck v. Medical Examiners

94 Ca 2d 751. 211 P2d 389.............................................................3,8

Vella v Hudgins

(1977) 20 C3d 251, 255, 142 CR 414.................................................7

17 Cal.2d at p. 291.......................................................................................14

17 Cal.2d at p. 293.......................................................................................15

57 Cal.2d 456...............................................................................................15

Statutes

California Civil Code 1940............................................................................6

California Civil Code 2924............................................................................6

Code of Civil Procedure 988t...................................................................15

Code of Civil Procedure 1085....................................................................1

Code of Civil Procedure 1159-1179a.....................................................6,7

Code of Civil Procedure 1161a(b)(3)............................................................6

Code of Civil Procedure 1161.1....................................................................6

vii


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Code of Civil Procedure 1162.......................................................................6

Pen. Code, 1471........................................................................................15

Other AuthoritiesGoldberg, The Extraordinary Writs and The Review

of Inferior Court Judgments (1948) 36 Cal.L.Rev. 558, 576......................14

The Judges Benchguide 31.........................................................................2,7

III. APPLICABLE LAW...................................................................7

G Tenant Defenses 1. [31.26] Listing of Common

Defenses...................................................................................7

(8) Title is at issue...................................................................7

Additional defenses..................................................................7

RULES

California Rules of Court Rule 8.204(c)......................................................17

California Rules of Court Rule 8.486.........................................................1,2

Constitutional Provisions

The United States Constitution, Fourteenth Amendment............................13

Cal. Const., Art. VI, 4e.............................................................................15

California Constitution article VI, section 10................................................1

viii


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PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE JUSTICES OF

THE SUPREME COURT OF CALIFORNIA En Banc:

PRELIMINARY AND JURISDICTIONAL STATEMENT

1. By this original Verified Petition for Writ of Certiorari,

Petitioner hereby seeks an order directing Respondents to reverse, vacate

and dismiss the summary judgment decision of the trial court.

2. Petitioner requests immediate temporary stay of the trial court

judgment order in the Case No. M-1502-CL-18351, CJW. Eviction of

Petitioner from her home before decision of this petition is in process and

soon eminent, and warrants the immediate intervention of a temporary stay

by this Court to preserve Petitioners possession and current ability to

pursue judicial remedy to a lawful conclusion.

3. This Petition is brought on the grounds that an unlawful

detainer action was adjudicated in excess of jurisdiction; and the Appellate

Division was complicit in the trial courts abuse of discretion to confer

jurisdiction where none existed to bring validity to a void proceeding.

4. Petitioner respectfully invokes the original jurisdiction of this

Court pursuant to California Constitution article VI, section 10 and

California Code of Civil Procedure section 1085; and Rule 8.486 of the

1.


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California Rules of Court.

5. Addressing Rule 8.486 of the California Rules of Court,

Petitioners affirmative defenses were deemed quiet title issues and

improper before the trial court because of the summary nature of unlawful

detainer litigation (See Trial Court Final Ruling of Unlawful Detainer,

Attachment A). The ensuing efforts of Petitioner/Appellant for review

of the trial courts decision wherein jurisdiction in the Appellate Division

was raised pursuant to California law as provided within the Judges

Benchguide 31, is as follows:

(A) Trial Court Minute Order, December 23, 2011.

(B) Trial Court Application For Stay of Enforcement of Judgment ,

January 11, 2011and Denial of Stay , January 12, 2011

(C) Appellate Division Request For Emergency Stay Of Execution,

January 18, 2011 and Denial of Stay, January 28, 2011;

(D) Petition For Writ Of Supersedes to stay eviction pending appeal and

Denial of Writ;

(E) Petitioner/Appellants Briefs, March 11, 2011 and May 3, 2011;

(EE) Appellate Division Oral Argument Transcript and Final Ruling,

June 6, 2011;

(F) Granted Certification of Transferability, July 18, 2011.

(G) State Court of Appeal Notice of Record on Transfer

2.


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Acceptance to State Court of Appeal,, July 21, 2011;

(H) State Court of Appeal Denial of Petitioners Case; July 27, 2011

(I) State Court Appellate Division Remittiter, July 29, 2011.

At no point did the trial court or the reviewing court address the

jurisdictional challenge as required and held in higher court decisions that

"Once challenged, jurisdiction cannot be assumed, it must be proved to

exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d 389; "There is

no discretion to ignore lack of jurisdiction. "Joyce v. U.S. 474 2D 215.

The egregious departure from California law and its collateral effect

on foreclosed California homeowners mandates the original jurisdiction of

this honorable Court by its reverent authority to bring integrity and

substantial justice to the presently hostile climate within the Superior Court.

6. The issues presented by this Petition are ofgreat public

importance and need to be resolved promptly because of the increasing

severe economic impact on homeowners and this State1. It is in the

public interest to henceforth reestablish the authority of the Judicial Council

of California/Administrative Office of the Courts and the Supreme Court

Of The State Of California over the Superior Court of California to restore

the integrity of impartial referee quality of the Superior Court that has taken

a seemingly hostile position against foreclosed California homeowners to

deny relief afforded by raising an express specifically recognized defense

3.


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provided by the Judicial Council of California/Administrative Office of the

Courts. By inference and express language of both statute and stare decisis

decision an Unlawful Detainer action is an improper venue to hear

litigation when title is at issue and litigation is between a plaintiff-lender

and defendant-homeowner. Respondents refusal to submit to the higher

court decisions results in an excess jurisdiction summary judgment for

possession of real property against most every California homeowner

following foreclosure. Additionally Petitioner moves this Court by this

Petition to order Respondents to show cause why subject case was

sustained in summary judgment once jurisdiction was challenged; and why

did Respondents assume and confer jurisdiction when none existed

resulting in the misleading appearance of lawful adjudication and verdict

that was in fact a void proceeding. This Petition does not present any

questions of fact the Court must resolve before issuing the relief sought.

Therefore, exercise of original jurisdiction is proper.

7. Petitioner has no adequate remedy at law. No other

proceeding is available to Petitioner to obtain a speedy and final resolution

of this denial of due process.

______________________________________________________

1Between 16,000 and 33,000 Foreclosure filings occur every month in California.

(www.foreclosureradar.com/california-foreclosures)


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4.

THE PARTIES

8. Petitioner is Defendant in the lawsuit entitled U.S. Bank

National Association As Indenture Trustee vs. Nelson E. Deamicis, Ruth

Deamicis and DOES 1 through 100, inclusive, Kern County Superior Court

- East Division- Mojave Branch Judicial District, Case No. M-1502-CL-

18351. Petitioner is currently in possession of the Property located at

20416 Sierra Ave., Tehachapi CA 93561. A writ of possession was issued

but not served and the automatic stay order following bankruptcy has been

lifted as of this filing.

9. U.S. Bank National Association As Indenture Trustee is

summary judgment Plaintiff granted possession of the Property and the

party whos interests will be affected by this petition.

10 The Superior Court of the State of California for the County

of Kern, Mojave Branch, Appellate Division presided over Petitioners

appeal and jurisdiction challenge.

11. The Superior Court of the State of California for the County

of Kern, Mojave Branch, the Honorable Kenneth Pritchard, Commissioner,

presided in excess of jurisdiction over the unlawful detainer action brought

against Petitioner.


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5.

FACTS AND LAW

12. REAL PROPERTY IN CERTAIN CASES. It is clear from

the language ofCalifornia Code of Civil Procedure Sections 1159-1179a

REAL PROPERTY IN CERTAIN CASES that recovery of possession of real

property is limited to leased or rented real property.

(Bold type used for emphasis)

1161 1. When he or she continues in possession, in person or by subtenant,

of the property, or any part thereof, after the expiration of the term for

which it is let to him or her;2. When he or she continues in possession, in person or by subtenant,

without the permission ofhis or her landlord, or the successor in estate of

his or her landlord, if applicable, after default in the payment of rent,

pursuant to the lease or agreement under which the property is held,

3. When he or she continues in possession, in person or by subtenant,

after a

neglect or failure to perform other conditions or covenants of the lease or

agreement under which the property is held,

5. As used in this section, tenant includes any person who hires real

property except those persons whose occupancy is described in subdivision(b) of Section 1940 of the Civil Code.

1161a

(b) In any of the following cases, a person who holds over and

continues in possession of a manufactured home, mobilehome, floating

home, or real property after a three-day written notice to quit the property

has been served upon the person, or if there is a subtenant in actual

occupation of the premises, also upon such subtenant, as prescribed in

Section 1162, may be removed therefrom as prescribed in this chapter:

(3) Where the property has been sold in accordance with Section 2924

of the Civil Code, under a power of sale contained in a deed of trust

executed by such person, or a person under whom such person claims, and

the title under the sale has been duly perfected.

(c) Notwithstanding the provisions of subdivision (b), a tenant or

subtenant in possession of a rental housing unit which has been sold by

reason of any of the causes enumerated in subdivision (b)...


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6.

13. California applicable law specifically supports the exclusion

of foreclosed homeowners with respect to CCP 1159-1179a.

(Bold type used for emphasis)

CALIFORNIA JUDGES BENCHGUIDES

Benchguide 31 LANDLORD-TENANT LITIGATION: UNLAWFUL

DETAINER

III. APPLICABLE LAWA. [31.3] General Background (Page 31-8) (Page references

added)

An unlawful detainer proceeding under CCP 1159-1179a is

a summary method for recovery of possession ofleased premises.

It is a limited proceeding designed to permit a landlord to recoverpossession of real property from a tenant who is wrongfully in

possession. Glendale Fed. Bank v Hadden (1999) 73 CA4th 1150,

1153, 87 CR2d 102.

Because of its summary character, an unlawful detainer action

is not a suitable vehicle for trying complicated ownership issues

involving allegations of fraud.Mehr v Superior Court(1983) 139

CA3d 1044, 1049, 189 CR 138.

G. Tenant Defenses (Page 31-23)

1. [31.26] Listing of Common Defenses

A tenant may assert only those defenses that, if proved, wouldeither preserve the tenants possession of the property or preclude

the landlord from recovering possession.Drouet v Superior Court

(2003) 31 C4th 583, 587, 3 CR3d 205; Vella v Hudgins (1977) 20

C3d 251, 255, 142 CR 414. Specifically recognized defenses

include the following:(8) Title is at issue. The litigation is between a plaintiff-

lender and a defendant-homeowner, rather than between landlord

and tenant, 138 (because of summary nature of unlawful detainer

proceedings, it is unsuitable forum to try complicated ownership

issues);Asuncion v Superior Court(1980) 108 CA3d 141, 145-146,

166 CR 306 (eviction of homeowners following foreclosure raises

due process issues and must be heard in superior court).

Additional defenses. As discussed inNork v Pacific Coast

Med. Enters., Inc. (1977) 73 CA3d 410, 414, 140 CR 734, additional

specifically recognized defenses include the following:


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7.

There was no rental because the supposed tenant was really

the purchaser of a life estate. Manning v Franklin (1889) 81 C 205,

207, 22 P 550.

14. ESTABLISHING JURISDICTION. Respondents refused to

submit to the stare decisis authority of both California District Court and

U.S. Supreme Court decisions when Petitioner challenged the jurisdiction

of the trial court to hear litigation between parties clearly excluded from the

scope of an action in unlawful detainer.

15. Respondents refused to the mandate that "Once jurisdiction is

challenged, the court cannot proceed when it clearly appears that the court

lacks jurisdiction, the court has no authority to reach merits, but rather

should dismiss the action. "Melo v. U.S. 505 F 2d 1026; "Once challenged,

jurisdiction cannot be assumed, it must be proved to exist." Stuck v.

Medical Examiners 94 Ca 2d 751. 211 P2d 389; "There is no discretion to

ignore lack of jurisdiction. "Joyce v. U.S. 474 2D 215; "A court cannot

confer jurisdiction where none existed and cannot make a void proceeding

valid. It is clear and well established law that a void order can be

challenged in any court". Old Wayne Mut. L. Assoc. v. Mcdonough, 204

U.S. 8, 27 S. Ct. 236 (1907). The trial court chose to abuse its discretion to

ignore lack of jurisdiction and/or confer jurisdiction where none existed.


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8.

The Appellate Division supported the abuse of discretion and further

conferred jurisdiction where none existed.

CLAIMS ASSERTED

16. The Court held inAsuncion v Superior Court(1980) 108

CA3d 141, 145-146, 166 CR 306 (eviction of homeowners following

foreclosure raises due process issues and must be heard in superior court).

Petitioner/defendant-homeowner has been denied due process by

Respondents defiant pursuit to adjudicate an unlawful detainer action

despite the jurisdictional challenge based upon the express limited scope

restriction imposed upon the trial court when the parties are a plaintiff-

lender and defendant-homeowner and title is at issue.

17. Petitioner/defendant-homeowner has been denied due process

by Respondents defiant endeavor to deny Petitioner access to the courts of

proper jurisdiction by granting summary judgment in an improper court of

limited jurisdiction in order to persuade Petitioner from pursuing the issues

of title and the inherent due process issues that must be heard in a court

of civil unlimited jurisdiction.

18. The actions of Respondents resulted in the compound denial

of Petitioners right to due process of law, which the Judicial Council of

9.


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California/Administrative Office of the Courts and higher court decisions

have endeavored to protect.

RELIEF SOUGHT

WHEREFORE, Petitioner prays this Court by a writ of certiorari:

1. Direct Respondents to comply with applicable law and

jurisdiction restriction guidelines forthwith;

2. Direct Respondent Commissioner Kenneth Pritchard, to

vacate judgment order and dismiss the unlawful detainer action Case No.

M-1502-CL-18351.

3. Direct Respondents to show cause for non-compliance of

Unlawful Detainer controlling law and jurisdictional challenge;

4. Order immediate stay of enforcement of the Unlawful

Detainer Judgment Order dated December 23, 2010; Case No. M-1502-CL-

18351, CJW;

5. For such other and further relief as the Court may deem just

and proper.

Dated: September 17, 2011 By______________________________

Ruth M. Deamicis, Petitioner/Defendant

10.


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MEMORANDUM OF POINTS AND AUTHORITIES

Scope of Unlawful Detainer and Civil Limited Jurisdiction

The Judicial Council of California/Administrative Office of the

Courts exercised the necessary forethought to address the due process issue

inherently raised in an unlawful detainer action between a plaintiff-lender

and defendant-homeowner wherein an answer and affirmative defenses are

required of the defendant-homeowner, and that those affirmative defenses

would inevitably raise issues that could not be heard in a summary action

court. The Unlawful Detainer Court expressly exists to hear litigation

between a landlord and tenant under a lease/rental agreement and expressly

cannot hear litigation between plaintiff-lender and defendant-homeowner.

The trial court is constrained by statute and applicable law to reach verdict

based upon the admissible evidence, which includes the status of the

defendant as determined by the defendant-homeowners responsive

pleading. Should the defendant-homeowner fail to motion, demurer or

raise the appropriate specifically recognized defense regarding issue of

title and/or fraud, the trial court is not required to draw conclusions outside

the pleadings of the parties.

Construction of Applicable Law

Equal Protection Of the Laws Is Fundamental To Californias

11.


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Constitutional Structure. The Judges Benchguide 31 provides the

California Superior Court with the appropriate view and required action to

ensure the Constitutionally protected rights of homeowners under the

Fourteenth Amendment are not denied or violated and the rights of

landlords and tenants under contractual agreement are protected. Upon a

defendant-homeowners first assertion of title issues and foreclosure fraud

or challenge of excess jurisdiction, the trial court cannot move forward to

evict a defendant-homeowner from the premises but is constrained to

exercise other procedural options available sua sponte.

In the case ofAuto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d

450 - Cal: Supreme Court 1962 the Court held [2] Certiorari, like

prohibition, is, of course, a "jurisdictional" writ. While it cannot be used to

attack an error of a lower tribunal committed in the exercise of its

jurisdiction, it is available when that tribunal has acted in excess of its

"jurisdiction." (Simmons v. Superior Court, 52 Cal.2d 373 [341 P.2d 13];

Portnoy v. Superior Court, 20 Cal.2d 375 [125 P.2d 487].) [3] The meaning

of "jurisdiction" for [57 Cal.2d 455] the purposes of certiorari and

prohibition is different and broader than the meaning of the same term

when used in connection with "jurisdiction" over the person and subject

matter. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288 [109 P.2d

12.


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942, 132 A.L.R. 715]; Goldberg, The Extraordinary Writs and The Review

of Inferior Court Judgments (1948) 36 Cal.L.Rev. 558, 576.) [4] In

commenting on the meaning of "jurisdiction" in a prohibition case, it was

said inAbelleira that, "Speaking generally, any acts which exceed the

defined power of a court in any instance, whether that power be defined by

constitutional provision, express statutory declaration, or rules developed

by the courts and followed under the doctrine ofstare decisis, are in excess

of jurisdiction, in so far as that term is used to indicate that those acts may

be restrained by prohibition or annulled on certiorari." (17 Cal.2d at p. 291.)

[6] Under the doctrine ofstare decisis, all tribunals exercising inferior

jurisdiction are required to follow decisions of courts exercising superior

jurisdiction. Otherwise, the doctrine ofstare decisis makes no sense. [7]

The decisions of this court are binding upon and must be followed by all

the state courts of California. [8] Decisions of every division of the District

Courts of Appeal are binding upon all the justice and municipal courts and

upon all the superior courts of this state, and this is so whether or not the

superior court is acting as a trial or appellate court. [9] Courts exercising

inferior jurisdiction must accept the law declared by courts of superior

jurisdiction. It is not their function to attempt to overrule decisions of a

higher court. (People v. McGuire, 45 Cal. 56, 57-58; Latham v. Santa Clara

13.


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County Hospital, 104 Cal.App.2d 336, 340 [231 P.2d 513]; Globe

Indemnity Co. v. Larkin, 62 Cal.App.2d 891, 894 [145 P.2d 633].) [57

Cal.2d 456] [10] This rule requiring a court exercising inferior jurisdiction

to follow the decisions of a court exercising a higher jurisdiction has

particular application to the appellate departments of the superior court.

Until very recently, the decisions of those courts were not subject to

appellate review except by the use of original writs in exceptional cases.

Even under the recent constitutional amendment (Cal. Const., art. VI, 4e),

which is not here applicable, the right of review is strictly limited (Code

Civ. Proc., 988t; Pen. Code, 1471). It would create chaos in our legal

system if these courts were not bound by higher court decisions.

[11] The Abelleira case, supra, held that the rule of stare decisis was a rule

of jurisdiction for the purposes of the writ of prohibition (17 Cal.2d at p.

293). For the reasons stated in that case, that rule is also one of jurisdiction

for the purposes of the writ of certiorari.

CONCLUSION

Petitioner was not summoned by the trial court to argue issues of a

rental agreement as none existed. Petitioner was not summoned to redress

the issues of foreclosure fraud or fraudulent conveyance of title and lack of

standing to foreclose non-judicially. Petitioner was summoned by the trial

14.


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court to answer a summons for unlawful detainer under threat of default

judgment within 5 days of service with affirmative defenses that cannot and

will not be heard by the very court making summons in order to summarily

grant judgment to dispossess Petitioner of the Property for failure to raise

defenses that are proper before the trial court in unlawful detainer. This

abuse of discretion and disregard for higher court decision demonstrate

Respondents resolve to deprive Petitioner of property in pursuit of some

unknown agenda. Respondents had procedural options sua sponte, to avoid

exercising excess jurisdiction and abuse of discretion but chose a path

independent of established jurisprudence.

For the foregoing reasons, Petitioner respectfully asks this Court to

grant the petition for writ of certiorari and order Respondents to bring

themselves into compliance with California law and show cause for non-

compliance of Unlawful Detainer controlling law and jurisdictional

challenge.

Petitioners case reflects a statewide matter of substantial justice and

great public importance of an emergency nature that requires immediate

resolution.

Respectfully submitted,

By ____________________________

DATED September 17, 2011 Ruth M. Deamicis, Petitioner

15.


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CERTIFICATE OF COMPLIANCE

Pursuant to rule 8.204(c) of the California Rules of Court, I hereby

certify that this petition contains 4470 words, including footnotes. In

making this certification, I have relied on the word count of the computer

program used to prepare this petition.

__________________________________

Ruth M. Deamicis, Petitioner/Defendant

16.


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VERIFICATION

STATE OF CALIFORNIA

COUNTY OF KERN

BEFORE ME personally appeared Ruth M. Deamicis who, being by

me identified in accordance with California law, deposes and says:

My name is Ruth M. Deamicis, Petitioner herein. I have read the

foregoing Petition for Writ of Mandate and know the contents thereof. I am

informed and believe and based on said information and belief I allege that

the contents therein are true of my own personal knowledge.

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on September 17, 2011 in Kern County, California.

By:_______________________________

Ruth M. Deamicis, Petitioner

On September 17, 2011 before me,_______________________________________

Name, Title of Officer E.G., Jane Doe, Notary PublicPersonally appeared Ruth M. Deamicis, who proved to me on the basis of satisfactory evidence to

be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to

me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by

his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the

person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California

that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

__________________________________(SEAL)

NOTARY PUBLIC SIGNATURE

_____________________________

Notary Public

My commission expires:

17.

Deamicis' -- CA Supreme Crt Petition for Writ of Certioriari FILED 9-22-11-1

Documents

Transcript of Deamicis' -- CA Supreme Crt Petition for Writ of Certioriari FILED 9-22-11-1